Free Motion for Protective Order - District Court of Federal Claims - federal

Case 1:93-cv-00655-MMS

Document 147-5

Filed 05/08/2007

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Suite 900 401 9th Street, N.W. Washington, D.C. 20004-2128 (202) 585-8000 Fax: (202) 585-8080 Harry J. Kelly Direct Dial: (202) 585-8712 E-Marl: h kelly@nixon peabody.corn

April 20, 2007

VIA ELECTRONIC MAIL/U.S. MAIL David Harrington, Esq. Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, NW Room 12136 Washington, DC 20530
Re:

Anaheim Gardens/Algonquin Heights -- Scope of Government Document Production and Discovery Responses

Dear Mr. Harrington: This letter responds to your letter to me date March 27, 2007 (the "March Letter"), and summarizes our telephone conversation last week. The March Letter noted that there were a number of plaintiffs and/or properties listed in our discovery requests to you that did not appear in the most recent complaint in the Anaheim Gardens case. The March Letter included a list of the plaintiffs and properties that appeared in that complaint and for which you would provide responsive information in your discovery responses. The March Letter also noted that there appeared to be no inconsistency between the plaintiffs and properties listed in our discovery requests in the Algonquin Heights case and the names listed in the complaint there. Upon receipt of the March Letter, we reviewed our lists of plaintiffs and properties in the Anaheim Gardens case, to determine which specific plaintiffs and properties were in dispute. As a precaution, we also reviewed the list of plaintiffs in the Algonquin Heights case, to verify that the list we provided to you was correct. The results of those reviews follow:

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Case 1:93-cv-00655-MMS

Document 147-5

Filed 05/08/2007

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David Harrington, Esq. April 20, 2007 Page 2

"Dismissed" Anaheim Plaintiffs. There are several plaintiffs listed in the "Subject Properties" in our discovery requests that were apparently dismissed by order of the Court (Judge Robinson) on April 30, 1996, along with several other plaintiffs in the Anaheim Gardens case. These "dismissed" plaintiffs who were listed in our discovery requests are: Florin I, L.P.
Florin II, L.P.

J.W.Y. Wong Jewel Lake Villa II, L.P.
185-255 Parkhill Corp. J. Ward and F.T. Ward, Joint Tenants

Florin Meadows I Florin Meadows II Jewel Lake Villa I Jewel Lake Villa II St. George's Plaza
Creekside Apartments

E. Kellenbeck and D. Kellenbeck, d/b/a Victorian Arms Apartments
Hillview Townhouses, Ltd.

Victorian Arms
Hillview Townhouses No.1 Hillview Townhouses

Hillview Townhouses, Inc. Washington Plaza Apts., Ltd.

Washington Plaza

It should be noted that each of these plaintiffs was included in the definition of "Plaintiffs" contained in the Government's discovery requests last summer. See, e.g., Defendant's First Request For Production Of Documents at 1. In preparing our responses to those requests, we provided information concerning these properties and, in return, included them in our discovery requests to the Government. We are in the process of contacting these plaintiffs concerning their status. Under the circumstances, we do not expect the Government to respond to the portions of the Plaintiffs' discovery requests applicable to these plaintiffs and properties. Additional Thetford Properties. The March Letter indicated that you would provide responsive information for those properties owned by Plaintiffs Thetford III and Thetford IV that were listed in the most recent complaint in Anaheim Gardens. Using the definition of "Subject Properties" contained in your discovery requests last July, we identified additional properties owned by Thetford III and Thetford IV that, although not listed in the complaint, have
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Filed 05/08/2007

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David Harrington, Esq. April 20, 2007 Page 3 suffered the same taking and the same sort of damages as the other Thetford properties listed there. These additional Thetford properties are as follows: Thetford III Beaumont Avenue Apartments Coleridge Road Apartments Icemorlee Street Apartments Hardee Street Apartments Holloway Court Apartments Holiday Town Apartments Henry Street Apartments Millbank Court Apartments
Johnson Court Apartments Oakwood Avenue Apartments Person Court Apartments

Raleigh North Apartments Washington Street Apartments (Deanswood) Tucker Street Apartments Young Avenue Apartments Thetford IV
Calico Court Apartments Chowan Court Apartments # 1

Columbus Court Apartments Franklin Court Apartments
Long Drive Apartments # 1 Oakwood Avenue Apartments #2

Peachtree Court Apartments
Stewart's Creek Apartments # 1

As we discussed, the Thetford partnerships were somewhat unique in that, unlike most owners of HUD-insured properties, the Thetford partnerships owned multiple properties. The plaintiffs themselves have not changed; in identifying these additional properties, they have simply specified in more detail the scope of the injury and damages that they alleged in their original complaint. The plaintiffs have provided documents and other information responsive to your discovery requests with respect to these additional Thetford properties and we anticipate receiving responsive documents and information about them from the Government. My notes indicate that you would review these properties and that we would have additional discussions after your receipt of this letter, at which time we can discuss a date for production of responses concerning these properties.
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Case 1:93-cv-00655-MMS

Document 147-5

Filed 05/08/2007

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David Harrington, Esq. April 20, 2007 Page 4

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Additional Algonquin Height Plaintiffs. As noted, the March Letter indicated there were no discrepancies between the list of the plaintiffs in that letter and the Subject Properties identified in our discovery requests. To be thorough, we reviewed the pleadings in the Algonquin Heights case and determined that the list of "Subject Properties" in that case, which was based on the caption from the appellate case, omitted several plaintiffs. As far as we can determine, the appellate caption was prepared by the clerk from the plaintiffs listed in the original complaint. As we discussed, there were two amended complaints filed in Algonquin Heights. The first amended complaint was filed as a matter of right on September 19, 1997, before the Government answered the original complaint, and added several new plaintiffs to the case. A second amended complaint was filed ¯ on May 8, 1998, and added four new plaintiffs. As noted, the first amended complaint was filed as a matter or right and the Government did not object to the second amended complaint. The additional plaintiffs in the Algonquin Heights case are: Cambridge Sq. North I Cambridge Sq. North Associates, A Limited Partnership Cambridge Sq. of Ft. Cambridge Sq. of Ft. Wayne Associates I, A Wayne I Limited Partnership Cambridge Sq. of Grand Cambridge Sq. of Grand Rapids Associates I, A Rapids Limited Partnership Cambridge Sq. of Grand Cambridge Sq. of Grand Rapids Associates II, A Rapids II Limited Partnership. Carriage House North Carriage House North Associates, A Limited Partnership Carriage House of Elkhart Carriage House of Elkhart Associates, A Limited Partnership. Carriage House of Carriage House of Mishawaka Mishawaka Associates I, A Limited Partnership

First Amended Complaint

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Case 1:93-cv-00655-MMS

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Filed 05/08/2007

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David Harrington, Esq. April 20, 2007 Page 5

Carriage House of Mishawaka Associates II, A Limited Partnership Carriage House of Muskegon Associates, A Limited Partnership Carriage House South Associates, A Limited Partnership Carriage House West I Associates, A Limited Partnership. Carriage House West II Associates, A Limited Partnership Carriage House West III Associates, L.P. Carriage House West IV Associates, A Limited Partnership Second Amended Complaint
Briar Crest, A Michigan General Partnership

Carriage House of Mishawaka II Carriage House of Muskegon Carriage House South Carriage House West I Carriage House West II Carriage House West III Carriage House West IV Briar Crest I Briar Crest II Briar Hills Townhouses Church Park Apartments

Briar Crest Apartments II, a Michigan Limited Partnership Briar Hills, A Michigan Limited Partnership The United Company Limited Partnership, A Massachusetts Limited Partnership

Before it acted on the second amended complaint, the Court first stayed and then dismissed the Algonquin Heights complaint. Nevertheless, the Notice of Appeal (attached) included all of these additional plaintiffs and they are properly parties in the appeal and the present litigation. Because these plaintiffs were not listed in the discovery requests we served last fall, we do not expect to receive responsive information concerning them in your forthcoming responses. We will prepare and serve separate discovery requests concerning these plaintiffs shortly.

10528573.1

NIXON PEABODY LLP

Case 1:93-cv-00655-MMS

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Filed 05/08/2007

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David Harrington, Esq. April 20, 2007 Page 6 I believe that addresses all of the outstanding issues concerning the plaintiffs and properties that we discussed during our telephone conversation last s week. If we become aware of any additional information pertinent to these matters, we will pass it along to you. If you have any further questions, please call me, and in any event, I look forward to hearing from you concerning responses relating to the additional Thetford plaintiffs at your earliest opportunity. Very truly yours,

CC:

Alycia A. Ziarno, Esq.

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